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June 18, 2007

Tenth Circuit approves federal DNA collections from convicts

Like other circuit to have considered the issue, the Tenth Circuit today in Banks vs. United States, No. 06-5068 (10th Cir. June 18, 2007) (available here), rejects a challenge to a federal DNA collection statute. Here is how the long opinion in Banks begins:

Government collection of deoxyribonucleic acid ("DNA") samples has caused considerable controversy. From State proposals to expand DNA extraction to misdemeanants, to federal DNA statutes designed to assist police in solving crimes, detractors allude to a police state reminiscent of George Orwell's dystopia portrayed in 1984. In this case, the challenged federal statute, The DNA Analysis Backlog Elimination Act of 2000, requires convicted felons to submit a DNA sample for inclusion in a national database. The database is used for law enforcement identification purposes; in judicial proceedings if otherwise admissible; for criminal-defense purposes; and for a population-statistic database for identification research, or for quality-control purposes, if personallyidentifiable information is removed.

We must decide whether the Fourth Amendment permits compulsory DNA testing of the Plaintiffs, non-violent felony offenders subject to the Act, in the absence of individualized suspicion that they have committed additional crimes. Applying a totality-of-the-circumstances test, we hold that the Act is constitutional because the Government's interest in extracting DNA from the Plaintiffs outweighs their interests in avoiding the intrusions upon their privacy.